Fica thematic panel: paternalism and the capabilities approach
Sheintul, Stephanie Ann (2018). 'FICA Thematic Panel: Paternalism And The Capabilities Approach' Paper presented at the annual conference of the HDCA, Buenos Aires, Argentina 2018.
Paternalistic action is action that is taken by an agent for the sake of promoting another individual’s good. Many different agents can engage in paternalistic action, but this panel will focus on governmental paternalism. Governmental paternalism, then, is defined as “interference by a government with the behavior of an individual for the sake of promoting that individual’s good.” Governmental paternalistic action is ubiquitous. Seat-belt laws, cigarette taxes, non-smoking areas, drug laws, and age and time restrictions for purchasing alcohol are just a few. The question is whether these actions are morally permitted. Specifically, whether a nation committed to following the capabilities approach is morally permitted to engage in these and/or other paternalistic actions.
Traditionally, paternalism has either been rejected as an impermissible breach of individuals’ autonomy, or has been welcomed as a permissible way to help individuals flourish. Proponents of the capabilities approach have tended to veer on the side of rejecting paternalism. Nussbaum, in particular, rejects most forms of paternalism on the grounds that most paternalistic action undermines individuals’ dignity. She thinks this because an important part of respecting us as ends is respecting our autonomy, i.e. our ability to set and pursue our own ends. Paternalistic action is thought to impermissibly curtail the capability of practical reason, which is one of the most important capabilities for individuals’ well-being.
The stakes are high when it comes to figuring out whether governments are morally permitted to engage paternalistic action. If it is true that most forms of paternalism undermine individuals’ dignity, then most of the paternalistic action that we constantly see around us is wrong. With this knowledge, we can begin to make movements to eliminate impermissible paternalistic laws/policies. However, if it is not true that most forms of paternalism undermine individuals’ dignity, then we need not make these movements. It may be that it is permissible, and even laudable, to engage in further paternalistic action. So, which view is right?
This panel considers two different views about the (im)permissibility of governmental paternalism for states following the capabilities approach. The first panelist, Stephanie Sheintul, argues that much state paternalistic action is morally permitted on the capabilities approach. She argues that one of the most prominent arguments against a paternalistic capabilities approach concludes that paternalistic action fails to respect people and their choices. Supposing that it is true that the capabilities approach is (to some extent) paternalist, she explains that many have taken the capabilities approach to face the following dilemma. If the capabilities approach is paternalist, then it does not respect people and their choices. But, if it respects people and their choices, then it is not paternalist (which means that the capabilities approach is inconsistent). She argues that given a better understanding of what is required to respect people and their choices, the capability approach can both (1) respect people and their choices and (2) be paternalist. That is, she argues that the dilemma that many take the capabilities approach to face is less serious than it has largely been taken to be.
The second panelist, Alison Coombs, argues that there are both general normative concerns and specific issues of application with regard to how paternalism may be dignity undermining. The first normative concern is about ensuring that all people have access to the dignity of taking risks, and making choices that could potentially be harmful. Following Honneth, she argues that depriving people of the ability to make choices about their own lives undermines self-trust, which is a necessary part of the capacity for autonomy. By undermining one of the core capacities necessary to exercise autonomy, paternalistic policies undermine dignity.
Another important component of the capacity for autonomy is self-esteem, which is undermined by social stigma. Insofar as paternalistic government policies strengthen social stigmas, or give rise to new social stigmas about prohibited behaviors, they undermine social recognition. This undermines both self-trust and self-esteem, since both are at least partly dependent on social recognition of the individual as capable of making decisions. As a practical matter, it is often the case that marginalized groups, who already face significant social stigma, are disproportionately affected by paternalistic government policies. For example, people of color are often disproportionately affected by prohibitions on tobacco and other drugs, and also face social stigmas of being more prone to criminal behavior. The upshot of criminalizing behaviors and disproportionately enforcing them in communities of color is that the social recognition in those communities is undermined. This, in turn, undermines autonomy and dignity.
Moreover, stigma is also a problem when we consider paternalism toward people with disabilities, which is usually motivated by a failure to recognize the capacities of people with disabilities as affording them the right to make their own decisions. In this case, autonomy and dignity are often thoroughly undermined by wide-ranging interference by both the government and other individuals. Self-trust, self-esteem, and self-respect are all seriously impeded by lack of social recognition of people with disabilities as equals deserving of respect for their autonomy. Even against the backdrop of concern for social justice inherent in the capabilities approach, government paternalism is a questionable tool for implementing the capabilities approach. If it is to be successful, it will require serious consideration of how to avoid stigma, and must provide ample opportunity for choice in order to avoid the pitfalls of undermining autonomy and dignity.
 Cass R. Sunstein, Why Nudge? The Politics of Libertarian Paternalism (New Haven: Yale University Press, 2014), 54.
 Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000),pgs. 86-96.